Approved Drug Screening Equipment
The following is a copy of the Regulation from Canada's Minister of Justice respecting Canada's first approved drug screening equipment. Please not that this equipment is to be used for screening purposes only, it is not to be used for evidentiary purposes at trial. A screening device may give a police officer reasonable and probable grounds for an arrest but its result cannot be used at trial.
Approved Drug Screening Equipment Order
Approved Drug Screening Equipment Order
Ottawa, August 22, 2018
Le procureur général du Canada,
Attorney General of Canada
Drug Screening Equipment
1 A Dräger DrugTest® 5000 and a Dräger DrugTest® 5000 STK-CA, when used together, are approved for the purposes of section 254 of the Criminal Code as equipment that is designed to ascertain the presence of a drug in a person’s body.
A revised Approved Drug Screening Equipment Order will come into force at the end of May 2019. The new order will state:
1 For the purpose of the definition approved drug screening equipment in section 320.11 of the Criminal Code, the following equipment that is designed to ascertain the presence of a drug in a person’s body is approved:
(a) a Dräger DrugTest® 5000 and a Dräger DrugTest® 5000 STK-CA, when used together; and
(b) a SoToxa™, an Abbot SoToxa™ Test Cartridge and an Abbott SoToxa™ Oral Fluid Collection Device, when used together.
STK-CA cartridges referred to above, which are to be used by police in Canada with every Drager DrugTest 5000 screening test, cannot be purchased, examined, tested, or evaluated by any member of the public or by any expert in private practice. Their evaluation by the Drugs and Driving Committee remains a secret. Defence lawyers and experts in private practice must use DrugTest 5000s and STK cartridges acquired in Europe or in the United States to test the reliability of these devices.
Please note that the Act and the Regulation make it clear that use of such equipment is limited to screening to "ascertain the presence of a drug in a person's body". The equipment ascertains, i.e. screens, for presence, it does not quantify concentration. If the equipment were incorrectly used to quantify a blood drug concentration of a specific drug its use for a forensic purpose would violate the principles laid down by Justice Lang in the Motherisk Inquiry Report.
Both recreational and medical cannabis products will trigger the DrugTest 5000. Medical use CBD oil has been shown to trigger a positive on the DrugTest 5000. Lawyers will need to be diligent to watch for false positives created by improper operation (including cold Canadian temperatures), lack of specificity for THC itself, or physiological conditions not contemplated by the design of the screening device. Unfortunately it appears that neither Measurement Canada nor any other government entiity, is providing metrological supervision of police use, including calibration and control tests, of this equipment.
The Canadian Society of Forensic Science has issued standards for new type approval of drug screening equipment submitted by their manufacturers. Evaluations of potential Approved Drug screening Equipment have not been made public.
There does not appear to be any system in place for periodic re-calibration or control tests. There do not appear to be any published standards for operation of these devices. There does not appear to be any control of mouth drug effect - similar to mouth alcohol - caused by recent ingestion of a substance (including fast food) that is in the mouth but is not yet in the rest of the body.
We need in Canada to have clear standardized protocols for using these devices properly. So far know one seems to be providing metrological supervision. Our governments should have addressed the need for such metrological control prior to the legislation, the approval of devices, the Regulations, and implementation.
Consider the following excerpt of an exchange between MP Iqra Khalid and a representative from Canada's Chiefs of Police during evidence before the Justice Committee, September 20, 2017:
Can you please describe how we calibrate the current devices and ensure that the measurements coming out of them are accurate? Is there any data that we collect with respect to inaccuracies or anomalies or false positives, etc., with those that are tested?
I'm sorry, are you referring to the oral fluid devices?
Yes, I am.
We don't have any that have been approved. Public Safety Canada looks after that aspect of it.
We're not aware of any, certainly not in Toronto, and I don't believe the OPP or others across the country are.
As far as the devices are concerned, if we don't have them in our hands, then they are not our responsibility.